Amicus Curiae Brief — United States v. Lopez

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No. 93-1260 =

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In The OFFICE OF THE CiER \j

Supreme Court of the United States

October Term, 1993

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UNITED STA®*%S,

Petitioner,

ALFONSO LOPEZ, JR.,

Respondent.

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On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

*

BRIEF OF NATIONAL SCHOOL SAFETY CENTER;

NATIONAL CRIME PREVENTION COUNCIL;

AMERICAN ASSOCIATION OF SCHOOL

ADMINISTRATORS; NATIONAL ASSOCIATION

OF SECONDARY SCHOOL PRINCIPALS; NATIONAL

CRIME PREVENTION INSTITUTE; NATIONAL

ASSOCIATION OF SCHOOL RESOURCE OFFICERS;

NATIONAL ASSOCIATION OF SCHOOL SAFETY

AND LAW ENFORCEMENT OFFICERS; DR. STUART

GOTHOLD, SUPERINTENDENT OF LOS ANGELES

COUNTY SCHOOLS, CALIFORNIA, AS

AMICI CURIAE IN SUPPORT OF

PETITIONER UNITED STATES

S

GEORGE BUTTERFIELD James A. Rapp

Der'ty Director (Counsel of Record)

Natienal School Safety HutTMacuer, Rape &

Cervter OrTBAL, P.C.

4165 *?housand Oaks Blvd., 428 North Sixth Street

Su*te 290 Quincy, IL 62301

Westiake Village, CA 91362 (217) 222-0752

(805) 373-9977 Attorneys for Amici Curiae

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

BABE CF AUTRE Ee oi cece cccccesecctns cuaen ii

cay BS re rr re 1

Se ES Gb ohne w dns eaNecbsbeenene tae aaen 5

SOFREMEPU ED COP ARGUMEBIN Bec ccccc deer estesivecves 6

Po hs RRP aD ee are Par a ae nre Meer ne ERC en Oe 7

A. STUDENTS AND STAFF SHOULD ENJOY A

HALO OF SAF&TY AND SECURITY IN AND

PFI DEE cbc cenerscevicsecceseress 7

B. LEGISLATION MAY REASONABLY ENSURE

THE SAFETY. AND SECURITY OF SCHOOLS

AND SURROUNDING AREAS................. 9

C. THE FIFTH CIRCUIT’S VIEW OF EDUCATION

IGNORES THE ROLE AND FUNCTION OF

EDUCATIONAL INSTITUTIONS............... 12

D. FINDINGS AND EVIDENCE WERE NOT

REQUIRED TO SUPPORT ACT ........cecccce 15

La ie oo cen aes aed eka tere cacdene Kh eo Kees 17

TABLE OF AUTHORITIES

Page

Cases:

Fry v. United States, 423 U.S. S42 (3979) 6 ok cece cerses 13

Garcia v. San Antonio Metropolitan Transit Author-

ity, 669 US. SEB. (USGI 5s 6 civ tcgres asia cee et 14, 15

Heart of Atlanta Motel, Inc. v. United States, 379 U.S.

roe) eee ee Eee eer Pe te re re eer 14

In re William G., 40 Cal. 3d 550, 709 P.2d 1287, 221

Cal. Rot. 138 (I9G0) i cask cackesseaaero iene ensaee 7

New jersty 0. 1.L.0., 469 US. SED (1PGG). occ et cues aes 7

Perez v. United States, 402 U.S. 146 (1971) ........... 13

United States v. Crew, 916 F.2d 980 (5th Cir. 1990) 15, 16

United States v. Edwards, 13 F.3d 291 (9th Cir. 1993) ..6, 15

United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993),

reh’g, en banc, denied, 9 F.3d 105 (5th Cir. 1993)

UTE eC e rere rere eee ee

United States v. Thornton, 901 F.2d 738 (9th Cir.

NOPD a aiikcs vhs Fee espe eee 15

STATUTES AND REGULATIONS:

8 UGC 6 9d) 1000)... cs 11

Crime Awareness and Campus Security Act, Pub.

L. No. 101-542, 104 Stat. 2381 (1991).............. 12

MISCELLANEOUS:

1 NIE, U.S. Dept. of Health, Education and Wel-

fare, Violent Schools — Safe Schools: The Safe School

Study Report to the Congress (1978).......... 7, 44 15

ill

TABLE OF AUTHORITIES - Continued

A. Novello, Surgeon General, From the Surgeon

General, U.S. Public Health Service, 267 JAMA

a Darla i hs er A a

C. Callahan and F. Rivara, Urban High School Youth

and Handguns: A School-Based Survey, 267 JAMA

TE I ie ae na 8,

Centers for Disease Control Morbidity and Mor-

tality Weekly Report, Violence-Related Attitudes

and Behaviors of High School Students — New York,

NR Brrr Cha or 405 0a 00k veces ss

Centers for Disease Control Morbidity and Mor-

tality Weekly Report, Weapon-Carrying Among

High School Students — United States, 1990 (1991)

Department of the Treasury - Bureau of Alcohol,

Tobacco, and Firearms, Yearly Report of Imported

i

J. Menacker and R. Mertz, State Legislative

Responses to School Crime, 85 Educ. L. Rptr. 1

RO UES Sieh i nny 5 0 e4 son ane eees¥ ec sed oc

Metropolitan Life Insurance Co., The Metropolitan

Life Survey of the American Teacher 1993 (Louis

Harris & Associates, | |. | a

M. Rosenberg, P. O’Carroll and K. Powell, Let’s Be

Clear: Violence Is A Public Health Problem, 267

ee

National Institute for Citizen Education in the

Law and the National Crime Prevention Coun-

cil, Teens, Crime, and the Community, West Pub-

lishing Company, St. Paul, MN, 1988 .........

Page

10, 16

ae 3

TABLE OF AUTHORITIES Continued

National Institute of Justice, Office of Juvenile

Justice and Delinquency Prevention, Gun Acquti

sition and Possession In Selected Juvenile Samples

(1993)

National School Boards Association, Violence in the

Schools: How America’s School Boards are Safe

guarding Our Children (1993) ..~....3.. ccc eeeee:

National School Safety Center, School Associated

Violent’ Deaths (May 1994)........ccccccccecee:

National School Safety Center, School Crime and

Violence Statistical Review (March 1994).........

National School Safety Center, School Safety Check

Se Se soak ae we ed we nk one Core eh eee

Virginia Dept. of Education, 1992 Youth Risk

Behavior Survey Report (1992)... .......6ececeee:

Page

Y

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No. 93-1260

= a

In The

Supreme Court of the United States

October Term, 1993

— @ —

UNITED STATES,

Petitioner,

ALFONSO LOPEZ, JR.,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

*

BRIEF OF NATIONAL SCHOOL SAFETY CENTER;

NATIONAL CRIME PREVENTION COUNCIL;

AMERICAN ASSOCIATION OF SCHOOL

ADMINISTRATORS; NATIONAL ASSOCIATION

OF SECONDARY SCHOOL PRINCIPALS; NATIONAL

CRIME PREVENTION INSTITUTE; NATIONAL

ASSOCIATION OF SCHOOL RESOURCE OFFICERS;

NATIONAL ASSOCIATION OF SCHOOL SAFETY

AND LAW ENFORCEMENT OFFICERS; DR. STUART

GOTHOLD, SUPERINTENDENT OF LOS ANGELES

COUNTY SCHOOLS, CALIFORNIA, AS

AMICI CURIAE IN SUPPORT OF

PETITIONER UNITED STATES

*

INTERESTS OF AMICI

This brief amici curiae is respectfully submitted pur-

suant to Supreme Court Rule 37. Consent to the filing of

this brief has been granted by counsel for the parties; the

letters of consent have been lodged with the Clerk of this

Court. Consent to addition of amici has been given orally.

This case, United States v. Lopez, will impact directly

on school safety throughout the Nation and specifically

the ability of Congress to help ensure that school cam-

puses and surrounding areas are safe and welcoming.

The National School Safety Center (NSSC) is a non-

profit partnership between the United States Depart-

ments of Justice and Education and Pepperdine Univer-

sity. The Center is funded by the federal Office of

Juvenile Justice and Delinquency Prevention and the

Department of Education. This partnership, which NSSC

represents nationwide, was established to promote coop-

eration among the Nation’s legal, law enforcement, and

education communities to positively and effectively

address the problems of crime, violence, vandalism, disci-

pline, and truancy disrupting our Nation’s schools.

NSSC is especially concerned that the limitation

upon Congress resulting from the Fifth Circuit’s decision

would be detrimental, because federal involvement may

be critical in dealing cooperatively with certain forms of

school crime or violence including firearms possession.

With its commitment to promote school safety and

knowledge of school safety issues, the Center believes it

may positively assist the Court in a reasonable and effec-

tive manner as it considers the case.

The National Crime Prevention Council (NCPC) is a

private, nonprofit, tax-exempt organization that works

with communities around the country to help them pre-

vent crime. The Council conducts public education cam-

paigns, trainings, and demonstration programs; it

publishes a variety of materials and works with such

major institutions as schools and law enforcement agen-

cies in all 50 states. NCPC is the co-author of the Teens,

Crime, and the Community curriculum and program, now

in use in more than 500 schools and other youth-related

institutions. NCPC’s mission is to forge a nationwide

commitment by people acting individually and together

to prevent crime and build safer, more caring commu-

nities. Since NCPC is comprised of a network of citizens,

professionals, and organizations that implement crime

prevention programs at the grassroots level and since its

programs involve schools, youth and community groups,

NCPC members will be directly influenced by the Court's

holding in this case.

The American Association of School Administrators

(AASA) is a professional association representing educa-

tional leaders in North America and other parts of the

world. AASA is dedicated to supporting and assisting

school system and other education leaders to achieve the

highest quality education for all learners through per-

sonal, professional, organizational and leadership devel-

opment and advocacy for public education. The decision

in this case will directly impact AASA members who

daily confront the issue of firearms in and around

schools.

The National Association of Secondary School Princi-

pals (NASSP) is a professional organization representing

more than 40,000 site administrators who manage the

nation’s middle-level and senior high schools. NASSP’s

members are directly responsible for she safety and edu-

cation of our nation’s youth. NASSP members are respon-

sible for a major proportion of the Nation’s 100,000

schools, 2.4 million teachers, and 44 million students. The

growing presence of firearms in the general community

poses a major threat to these teachers and students which

NASSP members believe must be countered in every way

possible.

The National Crime Prevention Institute (NCPI) pro-

vides crime and loss prevention training for police offi-

cers and managers, security administrators, citizen

leaders, and others concerned with public and private

safety and security. Since its establishment in 1971, over

30,000 people have taken part in various NCPI programs.

NCPI staff and adjunct faculty also conduct research and

provide risk analysis audits for public and private organi-

zations. NCPI is located in Louisville, Kentucky, and is a

unit of the Justice Administration at the University of

Louisville. NCPI trained practitioners will be directly

influenced by the Court’s decision in this case.

The National Association of School Resource Officers

(NASRO) is a professional organization comprised of law

enforcement officers working in educational environ-

ments, educators and parents concerned about the educa-

tional safety of children. NASRO is primarily a training

organization to keep officers informed of the most cur-

rent policies, trends and procedures. NASRO members

serve schools in 37 states and Canada and are directly

influenced by court decisions about firearms in and

around schools.

The National Association of School Safety and Law

Enforcement Officers (NASSLEO) is a professional orga-

nization comprised of individuals whose primary occupa-

tion is the administration or supervision of school

security/school police within a school system’s adminis-

trative structure as well as individuals, firms, agencies or

organizations who demonstrate an interest in the aims

and interests of NASSLEO. One of the stated objectives of

the Association is to promote legislation at the federal

level that is in the best interest of children, educational

professionals and school security officers. NASSLEO

members regularly confront firearms in and around

schools and would be directly influenced by the decision

in this case.

Dr. Stuart Gothold is the Superintendent of the Los

Angeles County, California, Office of Education. This

office comprises the second largest urban school district

in the Nation and includes 81 school districts, 1,665

schools, 58,669 teachers, and 1,455,867 students. This

office is responsible for reviewing suspension, expulsion,

and discipline policies to ensure statutory and constitu-

tional compliance by the 81 districts. Therefore, court

decisions, such as United States v. Lopez, directly impact

this office.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 2 F.3d 1342 (5th Cir. 1993),

reh’g, en banc, denied, 9 F.3d 105 (5th Cir. 1993).

°

SUMMARY OF ARGUMENT

Our Nation’s schools must have an environment for

learning that is safe and welcoming. Students cannot be

expected to learn where schools are plagued with crime

and violence

Schools serve a function of national importance.

Their success or failure directly affects the economic via-

bility of this Nation; their success or failure directly

affects our capability to prepare and maintain highly

skilled individuals for our national defense; and their

success or failure directly affects our Nation’s quality of

life.

Schools face problems caused by crime and violence.

These problems are national in scope. The issues of

drugs, gangs and weapons in school are integrally

related. The federal government can and should play a

role in making our schools safe and welcoming.

The impact of the Fifth Circuit’s decision limits the

role of the federal government in dealing with crime and

violence in and around schools. This limitation is unwar-

ranted in view of the modern role of educational institu-

tions and the investment the federal government makes

in education. The Commerce Clause allows the federal

government to curb school crime and violence through

such measures as the Gun-Free School Zones Act of 1990.

In deciding this case, the Court will resolve a split

between the Fifth Circuit and the Ninth Circuit. The

Ninth Circuit upheld the Gun-Free School Zones Act of

1990 in United States v. Edwards, 13 F.3d 291 (9th Cir.

1993). This Court should follow the view of the Ninth

Circuit.

ARGUMENT

A. STUDENTS AND ST/ FF SHOULD ENJOY A

HALO OF SAFETY AND SECURITY IN AND

AROUND SCHOOLS

“[I]n recent years,” as this Court has recognized,

“school disorder has often taken particularly ugly forms;

drug use and violent crime in the schools have become

major social problems.” New Jersey v. T.L.O., 469 U.S. 325,

339 (1985). Crime and violence affecting schools occurs

not only on campus but also in the immediate vicinities

and neighborhoods of our schools. Stated succinctly,

schools and their immediate surroundings must be “safe

and welcoming.” See In re William G., 40 Cal. 3d 550, 709

P.2d 1287, 1295, 221 Cal. Rptr. 118 (1985). Students and

staff should enjoy a halo of safety and security in and

around schools.

Neighborhood factors do impact school safety. See 1

NIE, U.S. Dept. of Health, Education and Welfare, Violen

Schools — Safe Schools: The Safe School Study Report to the

Congress at 121-22 (1978). Crime rate and the presence of

gangs in school neighborhoods make a difference. See

NIE, U.S. Dept. of Health, Education and Welfare, Violent

Schools — Safe Schools: The Safe School Study Report to the

Congress, Executive Summary at 9 (1978). School cam-

puses frequently reflect the crime and violence of adja-

cent areas. See generally National School Safety Center,

School Crime and Violence Statistical Review (March 1994)

(highlighting various statistical studies).

Statistical data clearly demonstrates the need for a

zone of safety and security around our Nation’s schools.

Eighty-two percent of schoc! district officials recently

reported that student violence he increased over the last

five years. See National School Boards Association, Vio-

lence in the Schools: How America’s School Boards are Safe

guarding Our Children (1993). This increase involves, in

part, an increase in accessibility to firearms.

A 1990 survey queried 11,631 students in grades 9-12

from the 50 states asking the question: “During the past

30 days, how many times have you carried a weapon,

such as a gun, knife, or club for self protection or because

you thought you might need it in a fight?” Nearly 20

percent of the students reported they had carried a

weapon at least once during the 30 days preceding the

survey. See Centers for Disease Control Morbidity and

Mortality Weekly Report, Weapon-Carrying Among High

School Students — United States, 1990 at 681-2 (1991). This

high level of firearms possession among our Nation’s

youth continues. One recent study suggests that 39.9

percent of Virginia’s high school-aged male students sur-

veyed had carried a weapon during the preceding month.

See Virginia Dept. of Education, 1992 Youth Risk Behavior

Survey Report at 8 (1992). In a larger study, some 22

percent of students from schools in some areas were

found to carry guns. National Institute of Justice, Office

of Juvenile Justice and Delinquency Prevention, Gun

Acquisition and Possession In Selected Juvenile Samples at 5

(1993). Other studies reflect similar statistics. See School

Crime and Violence Statistical Review, supra; Urban High

School Youth and Handguns: A School-Based Survey, supra.

See also Centers for Disease Control Morbidity and Mor-

tality Weekly Report, Violence-Related Attitudes and Behav

iors of High School Students — New York, 1992 (1993) (21%

carry gun or weapon).

Youth are not only carrying firearms to school. They

are using them at an alarming rate. Since July 1, 1992,

until May 26, 1994, the National School Safety Center has

been tracking intentional deaths that have occurred on

school campuses. Of the 74 deaths that the Center can

specifically document, 47 incidents or nearly two out of

every three involved the use of firearms. See National

School Safety Center, School Associated Violent Deaths at 7

(1994). Weapons, in the hands of youngsters, or in the

hands of anyone, pose an increasingly serious threat to

our Nation’s school children. Firearms simply have no

place on school campuses or adjacent areas.

B. LEGISLATION MAY REASONABLY ENSURE

THE SAFETY AND SECURITY OF SCHOOLS

AND SURROUNDING AREAS

Schools serve an essential and critically important

function in our society. They also bear some respon-

sibility in creating a safe school environment and in

working against crime and violence in the community.

Evidence has shown that up to two-thirds of the daytime

burglaries nationwide are done by juveniles who are

truant from school when the offenses occur. School pro-

grams that reduce truancy also reduce crime in the neigh-

borhood. See National School Safety Center, School Safety

Check Book at 69-70 (1990). But schools cannot do it alone,

10

and government has long taken measures to protect the

operations of schools from disruption.

State and local governments have adopted various

laws to restrict activities in and around schools. For

example, regulations limit the possession or use of alco-

hol on school property or the location of establishments

selling alcoholic beverages within a prescribed distance

from schools. Many state legislatures have also

responded specifically to school crime and violence

through a variety of laws, including those addressing

illicit drug use in or/near schools and, as here, the posses-

sion of weapons. See generally J. Menacker and R. Mertz,

State Legislative Responses to School Crime, 85 Educ. L. Rptr.

1 (1993) (compiling statutes).

As effective as some state or local regulations are or

may be, they are often insufficient to deal with the crime

and violence facing schools today. Use of firearms, in

particular, is not just a state or local problem but a

national one. “Firearm injuries among American youth

are a nationwide tragedy and an international embarrass-

ment.” C. Callahan and F. Rivara, Urban High School Youth

and Handguns: A School-Based Survey, 267 JAMA 3038

(1992).

Involvement of the federal government in the effort

to curb school crime and violence is both important and

essential. There are steps Congress may take to directly

foster school safety. For example, some 60 percent of

teachers believe the federal government should put more

law enforcement officers in school neighborhoods to pro-

mote school safety. See Metropolitan Life Insurance Co.,

The Metropolitan Life Survey of The American Teacher 1993 at

11

14-16 (Louis Harris & Associates, Inc., 1993). The Gun-

Free School Zones Act of 1990, 18 U.S.C. § 922(q), is

another such measure.

The need for a national resolve regarding firearms

accessibility in and around schools is not only reflected

by school crime and violence statistics, such as those

previously referenced, but by the number of firearms

annually becoming available. In 1991 alone the United

States was the home of 79 pistol manufacturers who

produced 1,381,325 pistols, 15 revolver manufacturers

who produced 456,941 revolvers, 100 rifle manufacturers

who produced 883,482 rifles and 31 shotgun manufac-

turers who produced 828,426 shotguns. The United States

is also the recipient of manufactured firearms from at

least 20 foreign countries. See Department of the Treasury

~ Bureau of Alcohol, Tobacco, and Firearms, Yearly Report

of Imported Firearms (1991). The sheer size and scope of

this volume of firearm manufacturing and marketing

reflects and supports a direct, common-sense correlation

between the weapons industry and the need for Congres- |

sional action. The limitations placed upon the federal

government by the Fifth Circuit should not stand. Con-

gress properly exercised its responsibilities under the

Commerce Clause to the American citizenry, including

schoolchildren, by passage of the Gun-Free School Zones

Act of 1990.

12

C. THE FIFTH CIRCUIT’S VIEW OF EDUCATION

IGNORES THE ROLE AND FUNCTION OF

EDUCATIONAL INSTITUTIONS

The Fifth Circuit rejected the view taken by the Dis-

trict Court whereby the Gun-Free School Zones Act of

1990 was sustained on the basis “that the ‘business’ of

elementary, middle and high schools . . . affects interstate

commerce.” Lopez, supra, 2 F.3d at 1366. By doing so, the

Fifth Circuit ignored the role and function of educational

institutions and effectively adopted a significant limita-

tion on the federal government.

The Fifth Circuit expressed concern that if Congress

may bar firearms possession under the Commerce Clause,

why not “lead pencils, ‘sneakers,/ Game Boys, or slide

rules”? Lopez, supra, 2 F.3d at 1367. To the contrary, if

Congress may not bar firearms possession in and around

educational institutions, then the Nation’s school have

lost what may have proved to be the most significant

development in helping secure safe schools in recent

years. Responses to school crime and violence often

require a comprehensive national approach and resolve

rather than a patchwork of individual state statutes.

A common means for federal regulation of schools

has been conditioning compliance on receipt of federal

monies. The statutes regulate the recipient of funds. See,

e.g., Crime Awareness and Campus Security Act, Pub. L.

No. 101-542, 104 Stat. 2381 (1991).

The Commerce Clause may serve as a basis for the

regulation of schools as well. In Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528 (1985), for

13

example, the Court upheld the extension of federal mini-

mum wage and overtime requirements to state and local

governments under the Commerce Clause. The Court

recognized, in particular, the substantial financial invest-

ment the federal government makes in “such services

as... education.” Id. at 553. Education may not be

considered a purely local activity without interstate

impact.

Argument concerning the validity of the Gun-Free

School Zones Act of 1990 has revolved around whether a

weapon has traveled in interstate commerce. Weapons,

the Fifth Circuit concluded, are different than drugs. See

Lopez, supra, 2 F.3d at 1366-67, n. 50. As recognized by this

Court, Congress may regulate even purely intrastate

activities that affect interstate commerce. See, ¢.g., Perez v.

United States, 402 U.S. 146 (1971); Fry v. United States, 421

U.S. 542 (1975). Focus should be directed as in Garcia

toward the role of educational institutions as they relate

to interstate commerce and not merely the route by which

a particular weapon may have arrived at or near a school.

The significance of modern schools to interstate com-

merce should not be cbscured. No longer are we dealing

with a.Nation of littlé red schoolhouses dotting every

village. Public and private schools range from the most

basic to great universities undertaking research of

national and global significance. Our elementary and sec-

ondary schools which benefit from the Gun-Free School

Zones Act of 1990 produce not just local residents but

those who will go forth throughout the Nation. The

inability of Congress to deal directly with problems of

firearms in and around schools, whether public or pri-

vate, directly undercuts this Nation's ability to sustain a

14

national or global economy by directly and substantially

affecting the teachers and students upon whom our

future relies. The federal government has, as pointed out

in Garcia v. San Antonio Metropolitan Transit Authority, 469

U.S. 528 (1985), made significant investments in educa-

tion. This is an investment the federal government may

rightly protect under the Commerce Clause.

The Fifth Circuit considered “simple firearms posses-

sion by ordinary citizens” to have an insufficient impact

upon commerce to justify a “singular incursion” by fed-

eral legislation. Lopez, supra, 2 F.2d at 1364. What might

be considered private activity clearly may impact inter-

state commerce. Heart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241 (1964). If travelers may be protected

against discrimination, then certainly students, some of

whom travel to other jurisdictions to attend school, may

be protected by Congress as well. Students residing in

unsafe areas frequently avoid school. See The Safe School

Study Report to the Congress, Executive Summary, supra, at

116. The crux of this case is not possession as such but

rather where firearms may be possessed. Schools and

their environs are not the place. Considering the educa-

tional and social costs of non-attendance at school and

the impact on students who do attend unsafe schools,

more is at issue than simple firearms possession.

There is little doubt that a disease affecting the per-

centages of staff and students that are affected by the

possession and use of firearms in and around schools

would be considered a national crisis. It is clear that

firearms violence is a national public health problem. See

M. Rosenberg, P. O’Carroll and K. Powell, Let’s Be Clear:

Violence Is A Public Health Problem, 267 JAMA 3071 (1992).

It denies educational opportunity. A. Novello, Surgeon

15

General, From the Surgeon General, U.S. Public Health Ser-

vice, 267 JAMA 3007 (1992). It is a matter properly

addressed by Congress by enactment of the Gun-Free

School Zones Act of 1990.

D. FINDINGS AND EVIDENCE WERE NOT

REQUIRED TO SUPPORT ACT

Despite its invalidation of the Gun-Free School Zones

Act of 1990, the Fifth Circuit did suggest that under some

circumstances the Commerce Clause could support such

a measure. Instead, the Fifth Circuit objected to the lack

of some “finding, legislative history, or evidence” justify-

ing its enactment. Lopez, supra, 2 F.3d at 1366. This ratio-

nale was appropriately rejected by the Ninth Circuit in

Edwards, supra, which found (citing previous cases of this

Court) that particularized findings are not required.

To the extent that legislative history is required to

support the Gun-Free School Zones Act of 1990 under the

Commerce Clause, such history does not depend upon

isolated findings. As in Garcia, supra, the “longstanding”

federal role in education may be considered. Garcia, supra,

469 U.S. at 552. Also, Congressionally initiated studies,

such as The Safe School Study Report to the Congress, supra,

are relevant.

The Gun-Free School Zones Act of 1990 may be bol-

stered by other legislative measures aimed at making

schools safe and welcoming such as that enacted to create

a “drug-free zone” around schools which was upheld by

both the Fifth and Ninth Circuits. See United States v.

Crew, 916 F.2d 980 (5th Cir. 1990); United States v. Thorn-

ton, 901 F.2d 738 (9th Cir. 1990). The Fifth Circuit noted in

16

Crew how neighborhoods may be held hostage by drug

activity. Crew, supra, 916 F.2d at 984. Access to and use of

firearms is closely associated with drug activity. See, e.g.,

Urban High School Youth and Handguns: A School-Based

Survey, supra, at 3040 (“strongest associations with hand-

gun access” include “selling drugs”). The Court should

accept a Congressional pattern as sufficient history with-

out special findings with respect to each element of that

approach.

The Fifth Circuit puts an unnecessary procedural cart

before the substantive horse. Under the circumstances, a

substantial impact upon interstate commerce is estab-

lished without further finding, legislative history, or evi-

dence.

17

CONCLUSION

rhis case is significant because it limits the authority

of Congress to undertake measures to help make schools

safe and welcoming. Such authority does exist under the

Commerce Clause. The Fifth Circuit should be reversed

and the Gun-Free School Zones Act of 1990 upheld.

Dated: May, 1994.

Respectfully submitted,

James A. Rapp

Counsel of Record

HuTMACHER, Rape & Ortpat, P.C

428 North Sixth Street

Quincy, IL 62301

(217) 222-0752

GrEORGE BUTTERFIELD

Deputy Director

National School Safety Center

4165 Thousand Oaks Blvd.,

Suite 290

Westlake Village, CA 91362

(805) 373-9977

Counsel for Amici Curiae °